HIPAA and State Discovery Practices

Attorney Ex Parte Interviews with Health Care Providers

At present, the practice of conducting attorney ex parte interviews with a personal injury plaintiff's health care providers is expressly permitted in 15 states, as well as in the District of Columbia, and expressly prohibited in 24 others. See sidebar accompanying this article, below. In addition, the practice is not expressly prohibited by case law or statute in Hawaii, Kentucky, Maine, Nevada, North Dakota, Oregon, South Dakota, Utah, Vermont, or Wyoming.

The prevailing policies in support of this practice are that a personal injury plaintiff waives the patient-physician privilege once he or she places his or her medical condition in issue by filing a suit for personal injuries; cost efficiency, especially regarding the elimination of non-essential witnesses; reduced scheduling problems; increased likelihood of candor from the witness; promotion of early case evaluation and settlement; and overall simplification of the flow of information. The prevailing policies against this practice can be placed into one category, namely, the patient's right to patient-physician confidentiality relating to that patient's medical condition. Here, courts are concerned that without the safeguards of a formal deposition at which both sides are represented, a physician subjected to an informal ex parte interview may be inclined to disclose potentially irrelevant, private patient health information. Not surprisingly, this is the exact argument attorneys in favor of HIPAA preemption of this discovery practice employ when faced with the possibility that their adversaries wish to informally contact their clients' treating physicians.

HIPAA Does Not Preempt Multi-State Discovery Practice

Congress drafted HIPAA with the intention of protecting patients from involuntarily surrendering control over their medical records or information in light of the growing health care industry and its increasing use of electronic storage and transmission of patient information. 65 Fed. Reg. 250, 82465-66 (Jan. 4, 2000). While still considering HIPAA's privacy regulations, Congress stated: “These technological changes, in short, may provide a reason for institutionalizing privacy protections in situations where the risk of harm did not previously justify writing such protections into law.” Id. at 82466.

HIPAA currently regulates a health care provider's “use and disclosure” of “protected health information.” Public Welfare, 45 C.F.R. ' 164.502 (2002). While HIPAA's regulations originally contained definitions for both “covered entity” and “protected health information,” these definitions have been removed without replacement. 68 Fed. Reg. 8334 (Feb. 20, 2003). Under the prior regulations, a covered entity was any entity “which transmit[ted] health information in electronic form,” and “protected health information” was defined broadly, subject to some narrow exceptions, to encompass any information “[t]ransmitted by electronic media” or “[t]ransmitted or maintained in any other form or medium.” 45 C.F.R. ' 164.501; Jeffrey A. Lovitky, “The Privacy of Health Information: Consents and Authorizations Under HIPAA,” 76 Fla. Bar J. 10, 11 (May, 2002). HIPAA also states that it shall “supercede any contrary provision of state law, including a provision of state law that requires medical or health plan records (including billing information) to be maintained or transmitted in written rather than electronic form.” 42 U.S.C.S. ' 1320d-7 (2003).

The threshold determination is whether this state discovery practice is “contrary” to HIPAA. HIPAA's regulations contain the following definitions of “contrary” to be employed in the preemption context: Contrary, when used to compare a provision of state law to a standard, requirement, or implementation specification, adopted under this subchapter, means:

• A covered entity would find it impossible to comply with both the state and federal requirements; or
• The provision of state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives … [of HIPAA]. 45 C.F.R. ' 160.202.

Regarding whether a particular state law discovery practice is an “obstacle” to the execution of HIPAA, Congress recognizes that HIPAA's scope should not reach state discovery practices used to obtain patient health information and employed in a matter in which a personal injury plaintiff has waived the patient-physician privilege by putting his or her medical condition in issue. For example, comments to 45 C.F.R. ' 164.512(e), titled “Disclosures for judicial and administrative proceedings,” provide: “The provisions of this paragraph are not intended to disrupt current practice whereby an individual who is a party to a proceeding and has put his or her medical condition at issue will not prevail without consenting to the production of his or her health information. In such cases, we presume that the parties will have ample notice and an opportunity to object in the context of the proceeding in which the individual is a party. 65 Fed. Reg. 250, 82530 (Dec. 28, 2000).”

In addition, 45 C.F.R. ' 164.512(e)(1)(ii) endorses the disclosure of protected health information “in the course of any judicial or administrative proceeding … [i]n response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court of administrative tribunal,” as long as the requesting party demonstrates that it provided the patient with notice of the request.

Both this particular state law discovery practice and the objectives of HIPAA can be carried out harmoniously. Both practices allow for the dissemination of patient health information via the use of patient authorizations (45 C.F.R. ' 164.508(a)), and as discussed, HIPAA allows for the release of patient health information without patient authorization when that patient has placed his or her medical condition in issue by filing a suit for personal injuries (45 C.F.R.' 164.512(e)). This latter method of obtaining patient health care information is even less restrictive than most state discovery laws allowing for ex parte interviews of a personal injury plaintiff's health care providers, because HIPAA does not require patient authorization in the context of a judicial or administrative proceeding.

Therefore, not only is it possible for attorneys to comply with both HIPAA and state law discovery practices for the disclosure of patient information via ex parte interviews with treating physicians, the privacy requirements of these state law discovery practices are often more restrictive than HIPAA.

Conclusion

HIPAA's well-intended purpose of assuring health care industry “customers,” including patients, “that the integrity, confidentiality, and availability of electronic protected health information they collect, maintain, use, or transmit is protected” is not contrary to the multi-state discovery practice of permitting attorney ex parte interviews with a personal injury plaintiff's health care providers. Nevertheless, a growing number of attorneys are attempting to use HIPAA and its preemption language as a means to cut down unfavorable state discovery practices. The easiest method of addressing these attacks is to become educated on the scope of HIPAA's privacy protections, preemption language, and on HIPAA's intended relationship with state discovery practices.

STATES THAT EXPRESSLY ALLOW EX PARTE INTERVIEWS (AND AUTHORITY)

District of Columbia _ Street v. Hedgepath, 607 A.2d 1238, 1247 (D.C. App. 1992).

Alabama _ Romaine v. Medicenters of Am., Inc., 476 So. 2d 51, 55 (Ala. 1985).

Alaska _ Langdon v. Champion, 745 P.2d 1371, 1374 (Alaska 1987).

Colorado _ Samms v. District Court, 908 P.2d 520, 525-26 (Colo. 1995).

Delaware _ Green v. Bloodsworth, 501 A.2d 1257, 1258-59 (Del. Super. Ct. 1985).

Georgia _ Orr v. Sievert, 292 S.E.2d 548, 550 (Ga. Ct. App. 1982).

Idaho _ Morris v. Thomsen, 937 P.2d 1212, 1217 (Idaho 1987).

Kansas _ Bryant v. Hilst, 136 F.R.D. 487, 491 (D. Kan. 1991).

Maryland _ Butler-Tulio v. Scroggins, 774 A.2d 1209, 1224-25 (Md. Ct. Spec. App. 2001).

Michigan _ Domako v. Rower, 475 N.W.2d 30, 33 (Mich. 1991).

Minnesota _ Minn. Stat. ' 595.02 (2002).

Missouri _ Brandt v. Medical Def. Assocs., 856 S.W.2d 667, 673 (Mo. 1993).

New Jersey _ Stempler v. Spiedell, 495 A.2d 857, 864-65 (N.J. 1985).

Rhode Island _ Lewis v. Roderick, 617 A.2d 119, 122 (R.I. 1992).

Texas _ Hogue v. Kroger Store No. 107, 875 S.W.2d 477, 481 (Tex. App. 1994).

Wisconsin _ Steinberg v. Jensen, 534 N.W.2d 361. 371-72 (Wis. 1994).

STATES THAT EXPRESSLY PROHIBIT EX PARTE INTERVIEWS (AND AUTHORITY)

Arizona _ Duquette v. Superior Court, 778 P.2d 634, 642 (Ariz. Ct. App. 1989).

Arkansas _ Kraemer v. Superior Court, 29 S.W.3d 684, 688 (Ark. 2000).

California _ Torres v. Superior Court of San Diego County, 221 Cal. App. 3d 181, 188 (1990).

Connecticut _Valentino v. Gaylord Hosp., 1992 Conn. Super. Lexis 456, *1 – *4 (Conn. Super. Ct. 1992).

Florida _ Acosta v. Richter, 671 So. 2d 149, 156-57 (Fla. 1996).

Illinois _ Petrillo v. Syntex Labs, 499 N.E.2d 952, 957-58 (Ill. App. Ct. 1986), app. den., 505 N.E.2d 361 (Ill. 1987), cert. den., 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232 (1987).

Indiana _ Cua v. Morrison, 636 N.E.2d 1248 (Ind. 1994).

Iowa _ Roosevelt Hotel Ltd. P'ship v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986).

Louisiana _ Boutte v. Winn-Dixie Louisiana, Inc., 674 So. 2d 299, 304-05 (La. Ct. App. 1996).

Massachusetts _ Alberts v. Devine, 479 N.E.2d 113, 120-21 (Mass. 1984).

Mississippi _ Scott v. Flynt, 704 So. 2d 998, 1005 (Miss. 1996).

Montana _ Jaap v. District Court, 623 P.2d 1389, 1391-92 (Mont. 1981).

New Hampshire _ Nelson v. Lewis, 534 A.2d 720, 723 (N.H. 1987).

New Mexico _ Smith v. Ashby, 743 P.2d 114, 116 (N.M. 1987).

New York _ Anker v. Brodnitz, 413 N.Y.S.2d 582, 585 (N.Y. Sup. Ct.), aff'd, 73 A.D.2d 589 (N.Y. App. Div. 1979).

North Carolina _ Crist v. Moffat, 398 S.E.2d 41, 45-47 (N.C. 1989).

Ohio _ Hammonds v. Aetna Cas. & Sur. Co., 243 F.Supp. 793 (N.D. Ohio 1965).

Oklahoma _ Johnson v. District Court of Oklahoma County, 738 P.2d 151 (Okla. 1987).

Pennsylvania _ Pennsylvania Rule of Civil Procedure 4003.6 (2002).

South Carolina _ S.C. Code Ann. ' 40-47-200 (2002).

Tennessee _ Givens v. Mullikin, 75 S.W.3d 383, 409 (Tenn. 2002).

Virginia _ Virginia Code Section 8.01-399 (2003).

Washington _ Loudon v. Mhyre, 756 P.2d 138, 140 (Wash. 1998).

West Virgina _ State ex. rel Kitzmiller v. Henning, 437 S.E.2d 452, 455 (W. Va. 1993).

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a complex commercial statutory scheme aimed at regulating the health care industry's use and storage of electronic health information. In drafting this legislation, Congress expressed concern that health care entities must assure their “customers,” including patients, “that the integrity, confidentiality, and availability of electronic protected health information they collect, maintain, use, or transmit is protected.” 68 Fed. Reg. 8334 (Feb. 20, 2003). HIPAA (Pub. L. No. 104-191) is codified in myriad sections of 18, 26, 29, and 42 of the United States Code. Using the Public Law Number cite and referring to the most recent edition of the United States Code Annotated Tables periodical will permit the reader to pinpoint these scattered United States Code sections.

Because of HIPAA's vast scope and because of its wording, that it “shall supercede any contrary provision of state law,” attorneys have begun to look to HIPAA as a means to preempt unfavorable multi-state discovery practices involving personal injury plaintiffs. An example of such a discovery practice that has recently come under fire is the practice of conducting ex parte interviews of a personal injury plaintiff's health care providers. As this article demonstrates, this practice is a time- and cost-effective alternative to conducting multiple, and potentially fruitless, formal depositions of each and every health care provider potentially involved in the treatment of a personal injury plaintiff. The practice is also currently employed in as many as 25 states, as well as in the District of Columbia.

This article specifically focuses on why HIPAA does not preempt the multi-state practice of attorney ex parte interviews with a personal injury plaintiff's health care providers. First, we examine the multi-state perspective on this discovery practice, with an emphasis on the policies in support of and against its use. Second, we focus on the scope of HIPAA's preemption language, demonstrating that Congress never intended for HIPAA to preempt multistate discovery practices employed only after personal injury plaintiffs put their medical conditions in issue. By focusing on this single example of ex parte interviews, it is our hope to keep practitioners informed about HIPAA's relationship and intended co-existence with well-conceived state law discovery practices.

Attorney Ex Parte Interviews with Health Care Providers

At present, the practice of conducting attorney ex parte interviews with a personal injury plaintiff's health care providers is expressly permitted in 15 states, as well as in the District of Columbia, and expressly prohibited in 24 others. See sidebar accompanying this article, below. In addition, the practice is not expressly prohibited by case law or statute in Hawaii, Kentucky, Maine, Nevada, North Dakota, Oregon, South Dakota, Utah, Vermont, or Wyoming.

The prevailing policies in support of this practice are that a personal injury plaintiff waives the patient-physician privilege once he or she places his or her medical condition in issue by filing a suit for personal injuries; cost efficiency, especially regarding the elimination of non-essential witnesses; reduced scheduling problems; increased likelihood of candor from the witness; promotion of early case evaluation and settlement; and overall simplification of the flow of information. The prevailing policies against this practice can be placed into one category, namely, the patient's right to patient-physician confidentiality relating to that patient's medical condition. Here, courts are concerned that without the safeguards of a formal deposition at which both sides are represented, a physician subjected to an informal ex parte interview may be inclined to disclose potentially irrelevant, private patient health information. Not surprisingly, this is the exact argument attorneys in favor of HIPAA preemption of this discovery practice employ when faced with the possibility that their adversaries wish to informally contact their clients' treating physicians.

HIPAA Does Not Preempt Multi-State Discovery Practice

Congress drafted HIPAA with the intention of protecting patients from involuntarily surrendering control over their medical records or information in light of the growing health care industry and its increasing use of electronic storage and transmission of patient information. 65 Fed. Reg. 250, 82465-66 (Jan. 4, 2000). While still considering HIPAA's privacy regulations, Congress stated: “These technological changes, in short, may provide a reason for institutionalizing privacy protections in situations where the risk of harm did not previously justify writing such protections into law.” Id. at 82466.

HIPAA currently regulates a health care provider's “use and disclosure” of “protected health information.” Public Welfare, 45 C.F.R. ' 164.502 (2002). While HIPAA's regulations originally contained definitions for both “covered entity” and “protected health information,” these definitions have been removed without replacement. 68 Fed. Reg. 8334 (Feb. 20, 2003). Under the prior regulations, a covered entity was any entity “which transmit[ted] health information in electronic form,” and “protected health information” was defined broadly, subject to some narrow exceptions, to encompass any information “[t]ransmitted by electronic media” or “[t]ransmitted or maintained in any other form or medium.” 45 C.F.R. ' 164.501; Jeffrey A. Lovitky, “The Privacy of Health Information: Consents and Authorizations Under HIPAA,” 76 Fla. Bar J. 10, 11 (May, 2002). HIPAA also states that it shall “supercede any contrary provision of state law, including a provision of state law that requires medical or health plan records (including billing information) to be maintained or transmitted in written rather than electronic form.” 42 U.S.C.S. ' 1320d-7 (2003).

The threshold determination is whether this state discovery practice is “contrary” to HIPAA. HIPAA's regulations contain the following definitions of “contrary” to be employed in the preemption context: Contrary, when used to compare a provision of state law to a standard, requirement, or implementation specification, adopted under this subchapter, means:

• A covered entity would find it impossible to comply with both the state and federal requirements; or
• The provision of state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives … [of HIPAA]. 45 C.F.R. ' 160.202.

Regarding whether a particular state law discovery practice is an “obstacle” to the execution of HIPAA, Congress recognizes that HIPAA's scope should not reach state discovery practices used to obtain patient health information and employed in a matter in which a personal injury plaintiff has waived the patient-physician privilege by putting his or her medical condition in issue. For example, comments to 45 C.F.R. ' 164.512(e), titled “Disclosures for judicial and administrative proceedings,” provide: “The provisions of this paragraph are not intended to disrupt current practice whereby an individual who is a party to a proceeding and has put his or her medical condition at issue will not prevail without consenting to the production of his or her health information. In such cases, we presume that the parties will have ample notice and an opportunity to object in the context of the proceeding in which the individual is a party. 65 Fed. Reg. 250, 82530 (Dec. 28, 2000).”

In addition, 45 C.F.R. ' 164.512(e)(1)(ii) endorses the disclosure of protected health information “in the course of any judicial or administrative proceeding … [i]n response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court of administrative tribunal,” as long as the requesting party demonstrates that it provided the patient with notice of the request.

Both this particular state law discovery practice and the objectives of HIPAA can be carried out harmoniously. Both practices allow for the dissemination of patient health information via the use of patient authorizations (45 C.F.R. ' 164.508(a)), and as discussed, HIPAA allows for the release of patient health information without patient authorization when that patient has placed his or her medical condition in issue by filing a suit for personal injuries (45 C.F.R.' 164.512(e)). This latter method of obtaining patient health care information is even less restrictive than most state discovery laws allowing for ex parte interviews of a personal injury plaintiff's health care providers, because HIPAA does not require patient authorization in the context of a judicial or administrative proceeding.

Therefore, not only is it possible for attorneys to comply with both HIPAA and state law discovery practices for the disclosure of patient information via ex parte interviews with treating physicians, the privacy requirements of these state law discovery practices are often more restrictive than HIPAA.

Conclusion

HIPAA's well-intended purpose of assuring health care industry “customers,” including patients, “that the integrity, confidentiality, and availability of electronic protected health information they collect, maintain, use, or transmit is protected” is not contrary to the multi-state discovery practice of permitting attorney ex parte interviews with a personal injury plaintiff's health care providers. Nevertheless, a growing number of attorneys are attempting to use HIPAA and its preemption language as a means to cut down unfavorable state discovery practices. The easiest method of addressing these attacks is to become educated on the scope of HIPAA's privacy protections, preemption language, and on HIPAA's intended relationship with state discovery practices.

STATES THAT EXPRESSLY ALLOW EX PARTE INTERVIEWS (AND AUTHORITY)

District of Columbia _ Street v. Hedgepath , 607 A.2d 1238, 1247 (D.C. App. 1992).

Alabama _ Romaine v. Medicenters of Am., Inc. , 476 So. 2d 51, 55 (Ala. 1985).

Alaska _ Langdon v. Champion , 745 P.2d 1371, 1374 (Alaska 1987).

Colorado _ Samms v. District Court , 908 P.2d 520, 525-26 (Colo. 1995).

Delaware _ Green v. Bloodsworth , 501 A.2d 1257, 1258-59 (Del. Super. Ct. 1985).

Georgia _ Orr v. Sievert , 292 S.E.2d 548, 550 (Ga. Ct. App. 1982).

Idaho _ Morris v. Thomsen , 937 P.2d 1212, 1217 (Idaho 1987).

Kansas _ Bryant v. Hilst , 136 F.R.D. 487, 491 (D. Kan. 1991).

Maryland _ Butler-Tulio v. Scroggins , 774 A.2d 1209, 1224-25 (Md. Ct. Spec. App. 2001).

Michigan _ Domako v. Rower , 475 N.W.2d 30, 33 (Mich. 1991).

Minnesota _ Minn. Stat. ' 595.02 (2002).

Missouri _ Brandt v. Medical Def. Assocs. , 856 S.W.2d 667, 673 (Mo. 1993).

New Jersey _ Stempler v. Spiedell , 495 A.2d 857, 864-65 (N.J. 1985).

Rhode Island _ Lewis v. Roderick , 617 A.2d 119, 122 (R.I. 1992).

Texas _ Hogue v. Kroger Store No. 107 , 875 S.W.2d 477, 481 (Tex. App. 1994).

Wisconsin _ Steinberg v. Jensen , 534 N.W.2d 361. 371-72 (Wis. 1994).

STATES THAT EXPRESSLY PROHIBIT EX PARTE INTERVIEWS (AND AUTHORITY)

Arizona _ Duquette v. Superior Court , 778 P.2d 634, 642 (Ariz. Ct. App. 1989).

Arkansas _ Kraemer v. Superior Court , 29 S.W.3d 684, 688 (Ark. 2000).

California _ Torres v. Superior Court of San Diego County , 221 Cal. App. 3d 181, 188 (1990).

Connecticut _Valentino v. Gaylord Hosp., 1992 Conn. Super. Lexis 456, *1 – *4 (Conn. Super. Ct. 1992).

Florida _ Acosta v. Richter , 671 So. 2d 149, 156-57 (Fla. 1996).

Illinois _ Petrillo v. Syntex Labs , 499 N.E.2d 952, 957-58 (Ill. App. Ct. 1986), app. den., 505 N.E.2d 361 (Ill. 1987), cert. den., 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232 (1987).

Indiana _ Cua v. Morrison , 636 N.E.2d 1248 (Ind. 1994).

Iowa _ Roosevelt Hotel Ltd. P'ship v. Sweeney , 394 N.W.2d 353, 357 (Iowa 1986).

Louisiana _ Boutte v. Winn-Dixie Louisiana, Inc. , 674 So. 2d 299, 304-05 (La. Ct. App. 1996).

Massachusetts _ Alberts v. Devine , 479 N.E.2d 113, 120-21 (Mass. 1984).

Mississippi _ Scott v. Flynt , 704 So. 2d 998, 1005 (Miss. 1996).

Montana _ Jaap v. District Court , 623 P.2d 1389, 1391-92 (Mont. 1981).

New Hampshire _ Nelson v. Lewis , 534 A.2d 720, 723 (N.H. 1987).

New Mexico _ Smith v. Ashby , 743 P.2d 114, 116 (N.M. 1987).

New York _ Anker v. Brodnitz , 413 N.Y.S.2d 582, 585 (N.Y. Sup. Ct.), aff'd, 73 A.D.2d 589 (N.Y. App. Div. 1979).

North Carolina _ Crist v. Moffat , 398 S.E.2d 41, 45-47 (N.C. 1989).

Ohio _ Hammonds v. Aetna Cas. & Sur. Co. , 243 F.Supp. 793 (N.D. Ohio 1965).

Oklahoma _ Johnson v. District Court of Oklahoma County , 738 P.2d 151 (Okla. 1987).

Pennsylvania _ Pennsylvania Rule of Civil Procedure 4003.6 (2002).

South Carolina _ S.C. Code Ann. ' 40-47-200 (2002).

Tennessee _ Givens v. Mullikin , 75 S.W.3d 383, 409 (Tenn. 2002).

Virginia _ Virginia Code Section 8.01-399 (2003).

Washington _ Loudon v. Mhyre , 756 P.2d 138, 140 (Wash. 1998).

West Virgina _ State ex. rel Kitzmiller v. Henning , 437 S.E.2d 452, 455 (W. Va. 1993).